Free Proposed Jury Instructions - District Court of Arizona - Arizona

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INSTRUCTION NO.

1 _

Plaintiff claims that each defendant has breached its written Limited Warranty.

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INSTRUCTION NO. 2 _ In order for the plaintiff to recover from either defendant upon plaintiff's claim for breach of that defendant's written Limited Warranty, the plaintiff must prove, by a preponderance of the evidence, all of the following: 1. that a defect related to material or workmanship occurred during the

warranty period and was covered by the warranty; and 2. that the plaintiff fulfilled all of his obligations under the warranty;

that the defendant was provided a reasonable opportunity to repair

the defect or replace the defective part; 4. but that the defendant refused or was unable to accomplish a repair or

replace a defective part.

The Limited Warranty of each defendant; 15 U.S.C. § 2310(d); Bailey v. Monaco Coach Corp., 350 F.Supp.2d 1036, 1043 (N.D. Ga. 2004).

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INSTRUCTION NO.

3 _

In order for a defendant to have had a reasonable opportunity to repair a defect or replace a defective part, the plaintiff must have provided the defendant with at least three (3) opportunities to perform the repair or replacement.

Abele v. Bayliner Marine Corp., 11 F.Supp.2d 955, 961-62 (N.D. Ohio 1997)

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INSTRUCTION NO.

4_

A written warranty must be interpreted and enforced consistent with its clear language.

Hoover v. Nelson, 110 Ariz. 329, 518 P.2d 990 (1974)

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INSTRUCTION NO.

5 _

A written warranty may properly limit the measure of damages that plaintiffs' may recover, as by limiting the plaintiffs' remedy to the repair or replacement of defective parts, unless the limited remedy fails in its essential purpose.

Salt River Project Agricultural Improvement & Power District v. Westinghouse Electric Corp., 143 Ariz. 368, 376, 694 P.2d 198, 206 (1984); Order of this Court dated July 25, 2005 at p. 11.

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INSTRUCTION NO.

6 _

It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.

Ninth Circuit Manual of Model Jury Instructions (Civil) (2001), Damages, 7.1 Damages ­ Proof.

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INSTRUCTION NO.

7 _

If you find that a defendant has breached its written Limited Warranty, then you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. You should consider the following: 1. The amount of money required to repair the motorhome so that the motorhome conforms with the warranty; 2. Consequential damages. To recover consequential damages, plaintiff

a. it was foreseeable to the defendant that these damages would probably result if the warranty was breached; and b. these damages were in fact caused by the defendant's breach of

3. Loss of use damages. Loss of use damages may be awarded to the plaintiff if the plaintiff has proven that there were periods during which the motorhome would have been used but was not used because of defects that the plaintiff, in good faith, was waiting for the defendant to repair. Damages are recoverable only for those days that the motorhome would actually have been in use. The plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. You may not award consequential damages or loss of use damages if you find that these damages are excluded under the terms of the warranty.

Order of this Court dated July 25, 2005 at pp. 10-11; Seekings v. Jimmy GMC of Tucson, Inc., 130 Ariz. 596, 605, 638 P.2d 210, 219 (1981); Miscione v. Bishop, 130 Ariz.

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371, 6363 p.2d 149 (1981); Ninth Circuit Manual of Model Jury Instructions (Civil) (2001), Damages, 7.1 Damages ­ Proof; Revised Arizona Jury Instructions (Civil) (Third Edition) Contract 18.

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INSTRUCTION NO. 8 _ If you find that a defendant has not breached its written Limited Warranty, then your verdict must be in favor of that defendant.

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